Andhra Pradesh High Court - Amravati
Shaik Inthiyaz vs The State Of Andhra Pradesh, on 27 September, 2024
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
AND
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
CRIMINAL APPEAL No.353 OF 2020 & R.T.NO.1 OF 2020
COMMON JUDGMENT:
(per the Hon'ble Sri Justice K.Sreenivasa Reddy) The appellant herein is the accused in Sessions Case No.59 of 2014 on the file of the VIII Additional District and Sessions Judge-cum-Special Judge for Trial of Offences against Woman, Nellore (hereinafter referred to, as 'the Sessions Judge').
2. Originally, the appellant herein and two others viz. T.Vamsi Krishna (hereinafter referred to, as 'J1') and G.Murali Manohar (hereinafter referred to, as 'J2') are alleged to have involved in the aforesaid offences. Since the said persons were juveniles-in-conflict-with-law, they were tried in accordance with the procedure contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2015.
3. The appellant/accused was tried for the offences punishable under Sections 302, 397, 307 and 449 2 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 read with 34 of the Indian Penal Code, 1860 (for brevity 'IPC'). Vide impugned Judgment, dated 06.02.2020, the learned Sessions Judge convicted the appellant/accused of the offences punishable under Sections 302, 397, 307 and 449 read with 34 IPC and sentenced him to undergo rigorous imprisonment for a period of seven (07) years for the offence punishable under Section 397 IPC and to undergo imprisonment for life concurrently for the offences punishable under Sections 449 and 307 IPC (under two counts) and the sentence of life imprisonment shall be full span of life without any remission. Further, the accused was ordered to hanged by the neck till he is dead for the offence punishable under Section 302 IPC (under two counts), as contemplated under Section 353 (5) of the Code of Criminal Procedure, 1973 (for brevity 'CrPC') subject to confirmation by this Court under Section 366 CrPC.
4. The substance of charges as against the accused is that on 12.02.2013 at about 11.30 a.m., at Door No.16-11-325, 1st floor, 2nd street, Haranadhapuram, 3 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 Nellore, the accused caused the death of one Asodhi Sakunthala and Asodhi Bhargavi (hereinafter referred to, as 'D1' and 'D2', respectively) using deadly weapons viz. button knife and iron pipe and thereby committed an offence punishable under Section 302 IPC.
In the course of same transaction, on the same date, time and place mentioned above, the accused did commit dacoity of one mobile phone and gold jewellery viz. gold bondu sarudu, gold chain, gold ear studs and anklets from the body of the deceased and thereby committed an offence punishable under Section 397 IPC.
In the course of same transaction, on the same date, time and place mentioned above, the accused stabbed P.Ws.1 and 2 with button knife and beat with iron pipe, with such intention and under such circumstances that if by that act the accused had caused death of P.Ws.1 and 2, he would have been guilty of murder, and thereby committed an offence punishable under Section 307 IPC.
In the course of same transaction, on the same date, time and place mentioned above, the accused committed 4 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 house trespass along with J1 and J2, by entering into the house of P.W.1, used as a human dwelling, in order to commit an offence punishable with death and thereby committed an offence punishable under Section 449 read with 34 IPC.
5. Case of the prosecution, in brief, is as follows:
P.W.1 is husband of D1 and father of D2. P.Ws.3 and 4 are related to P.W.1. D1 was housewife and D2 was studying III year MBBS in Narayana Medical College, Nellore. P.W.1 was dropping D2 at her Medical College by his car, everyday. On 12.02.2023, as usual, P.W.1 dropped D2 at her college at 10.00 a.m. At about 11.30 a.m. on that day, P.W.1 received a phone call from D2 stating that classes were not functioning on that day and she came back home. At about 12.00 noon, P.W.1 received another phone call from D2 stating that the accused was with her and asked P.W.1 to speak with the accused, as the latter came to the house along with two others. P.W.1 spoke with the accused over phone. The accused was an Architect and used to prepare building plans and elevations. P.W.1 5 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 asked the accused to put the plans in e-Mails and asked him to go away from the house. At about 12.30 noon, P.Ws.3 and 4 informed P.W.1 over phone that they went to house of P.W.1, but nobody was responding to the calling bell of the house. On that, P.W.1 tried to contact through landline of his house and also tried to contact D2 over cell phone. But, nobody responded to the same. By that time, P.W.1 was in the college premises. He informed the same to his staff, P.W.2 and asked him to accompany to his house. Accordingly, P.Ws.1 and 2 went to his house. P.W.1 enquired P.Ws.3 and 4 as to what had happened. P.Ws.3 and 4 informed that the accused stabbed D1 with knife indiscriminately on her neck and other two persons caught hold of the hands of D1 at the time of the stabbing. P.W.1 noticed that front door of the house was locked from inside. On that, P.W.1 asked P.W.2 to check the backdoor of the house through bathroom. P.W.1 waited at the front door and P.W.2 entered the house from back way. After some time, P.W.1 heard cries of P.W.2. Meanwhile, accused came out of the house from the main door by 6 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 opening the door and spread pepper on the face of P.W.1.
J2 also came along with accused and stabbed P.W.1 with knife on left side of stomach. At that time, J1 also came with accused and J2. The accused picked up an iron pipe and tried to beat on the head of P.W.1 but, P.W.1 escaped from that blow and sustained injury on left jaw. The incident occurred in the first floor of the building. Then, the accused got down from the first floor of the building through steps. Meanwhile, public gathered at his house. J1 and J2 entered the right side bedroom of the first floor building and hid in that room. Then, all of them went to front side of the house and saw D1 with bleeding injuries at her neck without any moment. P.W.2 also sustained bleeding injuries on his head and hands. P.W.2 saw D2 on her bed in southern side room without any moment. P.W.2 informed P.W.1 that J2 caught hold the hands of D2 and J1 caught hold neck of D2 and accused murdered D2 by pressing her neck. P.W.1 found missing of gold ornaments from the bodies of D1 and D2. Somebody informed about 7 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 the incident to 108 ambulance, wherein, P.Ws.1 and 2 along with D1 and D2 were shifted to Bollineni Hospital.
On 12.02.2013, P.W.19-Sub-Inspector of Police, IV Town Police Station, Nellore, on receipt of oral information about the incident, visited the place of occurrence i.e. house of P.W.1. P.W.19 informed the same to P.W.21-Sub- Divisional Police Officer, Nellore, over phone. P.W.19 found D1 and D2 and two injured persons. The accused were caught hold of by the public at the house of P.W.1. Thereafter, the injured and the deceased were shifted to Bollineni Hospital by 108 ambulance. P.W.19 recorded Ex.P1-statement of P.W.1 in hospital, as he received Ex.P30-Hospital Intimation. Basing on Exs.P30 and P1, he registered a case in Crime No.45 of 2013 for the offences punishable under Sections 302 and 397 IPC under Ex.P31-FIR.
On 12.02.2023 at about 12.45 noon, P.W.21, on receipt of information that an attempt of robbery took place at Haranadapuram, Nellore, and the accused hidden at the scene of offence, he immediately secured his staff 8 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 and rushed to the scene of offence. In the meanwhile, P.W.19 and his staff also rushed to the spot. P.W.21 found that accused were caught hold by the public. Then, he took them into custody. On receipt of Ex.P31-FIR, he took up investigation, secured the presence of mediators P.Ws.8 and 10 and seized (1) Bangaru Saradu; (2) Bangaru Chantatu Chain (one); (3) Bangaru Sada Butta Kammalu (two pairs); (4) Bangaru Vangaputha Tellaralla Kammala Jatha; (5) Nalupu Rangu Pusalu thodigina Bangaru Kammalu (one pair); (6) One pair of car studs having white blue stones; (7) One pair of gold Jumkielu; (8) One ear studed with white and green stones, and (9) One pair of silver anklets, from the possession of the accused. P.W.1 further seized one blood stained wooden tilt button knife (M.O.1) from the pocket of J1. He further seized M.Os.2, 4 to 8 from J2. Due to aggressive mob, P.W.21 shifted the accused and the Juveniles to IV Town Police Station for safe custody. He prepared scene observation panchanama- cum-seizure. During seizure panchanama, P.W.1 seized bed sheet of double cot and pillows having blood stains 9 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 (M.O.10) and M.O.11 from master bedroom and also seized iron pipe having blood stains (M.O.9), apart from M.Os.16 to 19 and obtained blood samples from the pool of blood. He prepared rough sketches of the scene of offence under Exs.P34 and P35. Thereafter, he conducted inquest over the dead body of D1 in the presence of P.W.10 and others. On the instructions of P.W.21, P.W.9 conducted inquest over the dead body of D2. Thereafter, P.W.21 examined P.Ws. 1 and 2 and recorded their statements.
On 12.02.2013, on representation from P.W.21, P.W.12-Associate Professor, ACSR Medical College, Nellore, conducted post-mortem examination over the dead body of D1 and D2 and issued Exs.P21 and P22-post-mortem certificates of D1 and D2, respectively. According to the Doctor, cause of death of D1 is due to shock and hammaerohage on account of multiple stab injuries and cause of death D2 is due to asphyxia on account of throttling.
P.W.21 took up further investigation. On 17.12.2013, on the request of the Finger Print Inspector, P.W.21 sent 10 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 Finger Prints of accused and juveniles to the Finger Print Bureau, Nellore. He conducted Test identification of properties through P.W.1 in the presence of P.W.11 and another under Ex.P20. On 24.02.2013, he recorded Ex.P12-confessional statement of the accused in the presence of P.W.10 and another, whereunder, the accused confessed about his involvement in two other crimes relating to old woman murders at Balaji Nagar and Ramurthy Nagar and committing theft of gold ornaments along with J1 and another. In pursuance of the confession, P.W.1 along with accused went to the house of father of the accused, wherein, the accused went inside of his office and brought three gold bangles and one gold chain and one gold ring pertaining to other cases and dish wire, used in commission of murder in the said case.
After obtaining proceedings of the Test Identification Parade and other relevant documents, and after completion of investigation, P.W.21 filed charge sheet against the accused.
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SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
6. The case was taken on file as P.R.C. No.18 of 2013 on the file of the V Additional Judicial Magistrate of First Class, Nellore. After furnishing copies of documents, as the offence is exclusively triable by the Court of Session, the learned Magistrate committed the case to the Court of Session, Nellore. The learned Principal Sessions Judge, Nellore took the case on file as S.C.No.59 of 2014 and made over the same to the trial Court. The learned Sessions Judge framed charges under Sections 302, 397, 307 and 449 read with 34 IPC against the accused, and when the same was read over and explained to the accused in his vernacular language, the accused denied the same and claimed to be tried.
7. During trial, P.Ws.1 to 21 were examined and Exs.P1 to P39, besides case properties M.Os.1 to 25 were got marked, on behalf of the prosecution. After completion of prosecution side evidence, the accused was examined under Section 313 CrPC to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused pleaded innocence. 12
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 On behalf of defence, D.Ws.1 and 2 were examined and Exs.D1 to D6 were got marked. The learned Sessions Judge, after appreciating of the evidence on record, convicted and sentenced the accused as stated supra. Challenging the same, the present Criminal Appeal is preferred by the accused.
8. Since one of the sentences passed by the learned Sessions Judge is a sentence of death, the learned Sessions Judge submitted the proceedings to this Court in accordance with Section 366 CrPC, for confirmation. Therefore, Referred Trial No.1 of 2020 is taken on file.
9. Sri P.Veera Reddy, learned senior counsel appearing on behalf of the appellant contended that there are number of discrepancies and contradictions in the evidence of material prosecution witnesses P.Ws.1 and 2, and basing on the said evidence, it is not safe to convict the accused of the aforesaid offences. According to the learned senior counsel, the First Information Report is hit by Section 162 CrPC and there are overwritings in the First Information Report as to when the report was made, 13 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 because of overwriting with regard to date in the First Information Report. According to the learned senior counsel, the accused is an Architect by profession and he is a highly qualified person, and the explanation given by the accused in his examination under Section 313 CrPC is more probable in the facts and circumstances of the case. According to him, the learned Sessions Judge erred in not attaching the importance to the statement of the accused given in his examination under Section 313 CrPC.
The learned senior counsel further submitted that the entire investigation conducted by the police is perfunctory, since police failed to collect call-data of mobile phones of P.W.1 and D2. He further emphasized that the investigating officer failed to take steps to collect foreign material in the nails of the accused and juveniles, as there were nail scratches at the neck of D2 and that, the investigating officer failed to seize memory card pertaining to the video from the concerned videographer and also failed to take photographs of the motorcycles at the time of the seizure of the said motorcycles. In the absence of 14 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 police not conducting investigating in a proper perspective, the links to form the chain are missing and the same would go to the root of the case. The learned senior counsel further submitted that a perusal of evidence of P.W.2 would go to show that the explanation given by the accused is more probable in the facts and circumstances of the case. The learned senior counsel submitted that the learned Sessions Judge has not considered the evidence on record in proper perspective and erred in convicting and sentencing the accused and hence, the accused is entitled to benefit of doubt.
10. On the other hand, learned Public Prosecutor appearing for the State contended that P.W.1 is a sterling witness, and so also, he is an injured witness. The defence cross-examined P.W.1 at length but, nothing has been elicited in his cross-examination to tilt the case of prosecution. According to him, in a case of this magnitude, some minor discrepancies and lacunae are bound to occur and as long as the same would not go to the root of the case, much significance cannot be given to them. In the 15 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 case on hand, the inconsistencies or contradictions, if any would not go to the root of the case and the evidence of material prosecution witnesses is consistent and trustworthy. According to him, the Judgment of the learned Sessions Judge is well-reasoned and calls for no interference by this Court.
11. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/accused for the offences punishable under Sections 302, 397, 307 and 449 read with 34 IPC beyond all reasonable doubt and whether the conviction and sentence recorded by the learned Sessions Judge are liable to be set aside or modified?
12. P.W.1 is husband of D1 and father of D2. Every day he used to drop his daughter at her medical college by his car. On 12.02.2013, as usual, P.W.1 dropped D2 at her college at 10.00 a.m. At about 11.30 a.m., since classes of D2 were not functioning, she went back home. At about 12.00 noon P.W.1 received a phone call from D2 stating that the accused was with her and asked him to speak with the accused, as the accused went to his house along with two others. P.W.1 spoke over phone with the accused 16 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 and suggested him to put the plans in e-Mails and asked him to go away from the house. At about 12.30 noon, P.Ws.3 and 4 informed over phone to P.W.1 that they went to his house but, nobody was responding to the calling bell. On that, P.W.1 tried to contact through landline of his house and also tried to contact D2 over cellphone. As nobody responded to the said phone calls, P.W.1, along with P.W.2, went to his house. P.W.1 enquired with P.Ws.3 and 4 directly as to what happened. P.Ws.3 and 4 informed that the accused stabbed D1 with a knife indiscriminately on her neck and the other two persons caught hold hands of D1 at the time of stabbing by the accused. P.W.1 noticed that front door of the house was locked from inside. P.W.1 asked P.W.2 to check backdoor of the house through bathroom and waited at the front door. After sometime P.W.1 heard cries of P.W.2. In the meanwhile, the accused came out of his house from the main door by opening the door and sprayed pepper on his face. J2 also came along with the accused and stabbed P.W.1 with knife on his left stomach. At that time, J1 also 17 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 came with the accused and J2. The accused picked up an iron pipe and tried to beat on the head of P.W.1, but P.W.1 escaped that blow and sustained injury on his left jaw. Then, the accused got down from the first floor of the building through steps. Meanwhile, public gathered at the house of P.W.1. At that time, J1 and J2 entered into the right side bedroom of the first floor of the building and hid themselves in the room. Then, all the witnesses went towards front side of the house and saw D1 with bleeding injuries at her neck and D2 lying on her bed without any moment. As someone informed 108 ambulance, the injured and D1 and D2 were shifted to Bollineni Hospital, Nellore.
13. P.W.2 did not support the case of prosecution and he was treated hostile.
14. P.Ws.3 and 4 are related to P.W.1. P.W.1 is their cousin. P.W.3 is an illiterate. She is not resident of the village of P.W.1. She deposed that about five or six years back, the incident occurred in the house of P.W.1. On that day, herself and P.W.4, who is her co-daughter-in- 18
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 law came to the village of P.W.1 at about 12.25 p.m. P.W.3 pressed the calling bell of the house of P.W.1. But, nobody opened the door of the house. On that, she contacted P.W.1 over phone. P.W.1 informed P.W.3 to wait at the house and he was coming to the house. In the meanwhile, P.W.3 heard cries of D1. She peeped into the house of P.W.1 through window and say two lean persons of small age, catching hold of hands of D1 and accused stabbing D1 with a kathi, at her neck. In the meanwhile, P.W.1, P.W.2 and another came to the house of P.W.1 and P.W.1 sent P.W.2 into the house through back way of the house. After sometime, P.W.3 heard cries of P.W.2. Accused opened the door and at that time, the accused sprayed chilly powder on P.W.1 and beat him with an iron pipe on his head. But, P.W.1 escaped from that blow and sustained injury on his left jaw. One small boy of red colour stabbed P.W.1 on his stomach, with kathi and she saw D1 lying on the floor on the left side in a pool of blood. P.W.3 further deposed that they entered into the house 19 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 and found D2 on the cot without any moment. Thereafter, the injured, D1 and D2 were shifted to the hospital.
15. P.W.4 is also a cousin of P.W.1. She too narrates in the same lines as P.W.1 stated.
16. P.W.5 states that about five years back, when she was at her house, the accused and two other minor boys parked their motorcycles by the side of her house. The said three persons went to the house of P.W.1 and half-an-hour thereafter, P.W.1 came to his house and, suspecting something, she followed the car of P.W.1, saw people gathered at the house of P.W.1 and also saw the accused coming out of the house of P.W.1 and spraying something like chilly-powder and beating P.W.1 with an iron rod. Thereafter, one of the two minor boys beat P.W.1 with a rod on his left jaw. She further deposed that she was examined by the police after three days of the incident.
17. P.W.6 is the photographer. On the date of the incident, on request of police, P.W.6 went to scene of 20 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 offence and videographed the offence. Ex.P5-CD relating to the crime was handed over to P.W.21-DSP.
18. P.W.7 is the videographer. On request, he videographed the scene of offence.
19. P.W.8 is the mediator. According to him, police apprehended the accused and seized Samsung Galaxy cell phone and silver and gold ornaments under the cover of a Mediatornama. He deposed in his cross-examination that he observed that there was no injury on the body of the accused and accused was walking freely at that time. He also acted as one of the mediators when police conducted inquest over the dead body of D2 under Ex.P9-Inquest Report.
20. P.W.9 was doing business in finance. He deposed that his executive participated in the auction of the vehicles conducted by Bajaj Finance and became successful bidder. His executive sold away the vehicle bearing No.AP26 AK 2593 to J2 on finance on 03.12.2012. 21
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 Police seized the documents pertaining to the said two- wheeler.
21. P.W.10 is the mediator for inquest of D1. He deposed about the inquest conducted by police over the dead body of the D1 under Ex.P11-Inquest Report.
22. P.W.11 is mediator for the confessional statements of the accused and J1 and J2 and also seizure of M.Os.12 and 13. Ex.P.18 is the Confession-cum-Seizure Mahazar. He also deposed about seizure of M.Os.14 and
15. Ex.P19 is the Mahazar. He also deposed about conducting of Test identification of properties through P.W.1 in his presence under Ex.P20-Proceedings of Test Identification Parade of properties.
23. P.W.12, Associate Professor, ACSR Medical College, Nellore, deposed in his evidence that on 12.02.2013, on requisition by P.W.21, he conducted post- mortem examination over the dead body of D1 and found the following external injuries:
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SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
1. A stab injury on chest between both collar bones of chest size 2.5 x 1.5 cm deep present edges are red in colour;
2. A stab injury 1.5 cm below the above injury of size 2.5 x 1 x 3 cm deep present, edges are red in colour;
3. A stab injury on right hand between thumb and index finger on palmar side of size 2.5 x 2 x 3 cm deep and opens on back of hand;
Ribs and chest wall, deeply congested, 500 ml of blood pooled in chest cavity of lungs and heart pale.
According to the Doctor, the cause of death of D1 is due to shock and hammaerohage on account of multiple stab injuries. Ex.P.21 is the Post-Mortem Examination report of D1.
He also deposed that on the same day, at about 6.30 to 7.00 p.m., he conducted post-mortem over the dead body of the D2 and found the following injuries:
1. Scratch abrasions of each size 1 cm on both sides of neck due to nails present, 8 in number;
2. Neck: - neck structures deeply congested hyoid bone, right horn fracture in its middle;23
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
3. Lungs and Pleural cavities / Heart congested;
4. Liver and other structures also congested. According to the Doctor, the cause of death of D2 is due to asphyxia on account of throttling. Ex.P22 is the Post-Mortem Examination Report of D2.
In re-examination, P.W.12 deposed that the injuries on D1 are possible with M.O.1/button knife.
24. P.W.13, who worked as Superintendent of Government Observation Home for Boys, Tirupati, deposed that on 24.02.2013 at about 11.30 AM, on receipt of orders of the Magistrate (Juvenile Court, Nellore), P.W.15 examined J1 and J2 and recorded their statements in the presence of P.W.13.
22. P.W.14, Casualty Medical Officer, KIMS Super Specialty Hospital, Nellore, deposed that he examined P.Ws.1 and 2 on 12.02.2013 at about 1.30 PM. Exs.P23 and 24 are the wound certificates of P.Ws.1 and 2 respectively. He further deposed in his cross-examination that there was no mention in the wound certificates with regard to burning sensation to P.Ws.1 and 2 due to pepper 24 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 spraying. According to P.W.14-Doctor, P.Ws.1 and 2 received grievous and simple injuries.
25. P.W.17-the then IV Additional Judicial Magistrate of First Class, Nellore, conducted test identification parade of accused through P.Ws.3 and 4, wherein they identified the accused. Ex.P26 is the test identification proceedings.
26. P.W.18-Inspector of Police/Finger Print Expert at Kurnool, deposed that on 12.02.2013, he visited the scene of offence, examined all the items of the articles suspected to have been handled by the culprits. He further deposed that during the course of his examination and development, 7 chance prints were disclosed on the scene of crime articles, which are marked as A, B, C, D, E, F and G. Ex.P27-visiting scene of offence report; Ex.P28 is the chance prints 3 (A, C and G) and Ex.P29 is chance prints identical report with accused, J.1 and J2 dated 01.03.2013. According to P.W.18, the chance prints marked as A, C and G were compared with the arrested accused, J1 and J2, and found that the change print marked A is identical with the right middle finger 25 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 impression of accused; the chance print marked as C is identical with the thumb impression of J.1 and the chance print marked as G is found identical with right ring finger impression on the finger print slip of J.2.
27. The learned Sessions Judge relied on the evidence of P.Ws.1, 3 to 6 in convicting and sentencing the accused. On a perusal of the evidence of P.W.1 goes to show that there is nothing to infer adverse so as to tilt the case of prosecution. P.W.1 categorically stated that on the fateful day, on receipt of call from P.Ws.3 and 4, he went to his house and got information through P.Ws.3 and
4. When P.W.1 was standing at the main door, the accused came out of his house from main door by opening the door and spread pepper on his face. J2 also came along with the accused and stabbed P.W.1 with knife on his left stomach. The accused picked up an iron rod and tried to beat on P.W.1's head, as a result, he sustained injury on his left jaw. This evidence of P.W.1 has not been shaken in cross-examination also. It is apparent on the record that the accused is known to P.W.1 for the last 1 ½ 26 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 years. A phone call by D.2 to P.W.1 with regard to arrival of the accused to the house of P.W.1 at about 12.00 noon on the date of the incident, goes to show that inmates of the house of P.W.1 i.e. deceased 1 and 2, are well acquainted with the accused.
28. Primary consideration is, it is not the case of prosecution that P.W.1 invited the accused to his house to come at about 12.00 noon on the fateful day. In the absence of any evidence to show that the accused was asked to come to the house of P.W.1, it can be inferred that the accused volunteered himself to go to the house of P.W.1 along with two others. There is no reason as to why the accused went to the house of P.W.1 in order to submit a building plan and elevations to P.W.1, more particularly knowing well that P.W.1 would not be in the house during the relevant point of time. It is pertinent to mention here that defence of the accused that there were two other persons in the house and he was dragged into the house, appears to be a concocted story, when there is no evidence to the extent that P.W.1 invited the accused to his house 27 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 in order to submit the building plans. On a perusal of the evidence of P.W.1 goes to show that D.2 called P.W.1 and informed him with regard to arrival of the accused to their house. At that time, P.W.1 also spoke to the accused and told him to put the plans in e-mails and asked him to go away from the house. Therefore, it can be inferred that the accused was present in the house of P.W.1. If really the statement of the accused that four other accused were present in the house and he was dragged into the house by the other accused, cannot be accepted for the reason that if really such an incident is said to have taken place, the accused would have lodged a complaint in police station or in case if he was not able to lodge a complaint in police station, he would have brought the same to the notice of the Magistrate at the time when he was produced for remand. None of such incidents had taken place. By virtue of the same, it can be concluded that the accused along with two others went to the house of P.W.1.
29. Apart from the same, it has been categorically stated by P.W.1 that the accused took an iron pipe and 28 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 tried to beat on his head, but he escaped from that blow and sustained injury on his left jaw. P.W.1 is the injured witness and he is the best person to speak with regard to the fact as to who caused injury to him. Thereafter, when the accused went down from first floor of the house through steps, he was caught by public gathered at the house of P.W.1. The other two persons J1 and J2 entered into right side bed room of the first floor of the building and hid themselves in that room. They too were caught by the public red-handed. Nothing has been elicited in cross-examination of P.W.1 so as to disbelieve the version given by P.W.1 in his examination-in-chief. A suggestion was put to him to the extent that two other persons who are involved in the case, escaped from P.W.1's house by jumping from compound wall. P.W.1 denied the said suggestion.
30. P.W.2 is another injured witness. But, he did not support the prosecution case and was treated hostile by the prosecution.
29
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
31. It is clear from the evidence of P.Ws.3 and 4, who are cousins of P.W.1, that they went to the house of P.W.1 at about 12.24 noon and pressed calling bell of the house. Since nobody opened the door of the house of P.W.1, they contacted P.W.1 over phone. P.W.1 informed them to wait at the house as he was coming to the house. They informed P.W.1 that they saw the accused stabbing D1 and when J1 and J2 were holding hands of D.1.
32. Learned senior counsel appearing on behalf of the accused submitted that the investigating agency did not collect any call data so as to prove whether P.Ws.3 and 4 and D.2 called P.W.1 on the fateful day. According to him, the incident did not take place, as suggested by the prosecution. This Court is of the opinion that call data is essential in the absence of any eye-witnesses' account whether the accused was present in the house or not. P.Ws.3 and 4 were present at the scene of offence at the relevant point of time of the incident. They saw the accused stabbing D.1 on the neck.
30
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
33. The learned senior counsel tried to demonstrate by taking the Court to Ex.P34-rough sketch of the scene of offence, by stating that even if P.W.3 peeped into the window, she would not have seen the actual incident that took place in the house of P.W.1 for the reason that the dead body of D.1 was found at the dining table, and hence, P.W.3 could not have witnessed the incident. When P.W.3 was witnessing the incident and peeped through window, the accused must be causing injuries to D.1 and ultimately the dead body must have laid at the dining table. Apart from the same, since there is no dispute from the case of the prosecution and the defence that the presence of the accused is not disputed at the relevant point of time of the incident. Merely stating that four other persons were involved in the said offence, it would not preempt the entire case of the prosecution.
34. The learned senior further contended that entire investigation conducted is perfunctory for the reason that the investigating officer did not collect foreign material in the nails of the accused and juveniles, as there 31 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 were nail scratches at the neck of D2. On this aspect, it is pertinent to refer to a decision in Sonvir v. State (NCT of Delhi)1, wherein it is held that provisions of the Identification of Prisoners Act, 1920 are not mandatory, but rather directory, and that they only affirm the bona fides of the sample taking (of the fingerprints of an accused) and eliminate the possibility of evidence fabrication. The Hon'ble Apex Court, however, made it clear that not following or complying with the provisions of the Act, would not per se vitiate the evidence in a given case. The same was affirmed in Ashish Jain v. Makrand Singh2.
35. Though there are certain discrepancies in the evidence of P.Ws.3 and 4, they are minor in nature and would not in any way go to the root of the prosecution case so as to tilt the prosecution case. P.W.5 is one of the witnesses who saw the accused coming out of the house of P.W.1 and spraying something like chilly powder and beating P.W.1 with an iron rod. He further stated that he 1 (2018) 8 SCC 24 2 (2019) 3 SCC 770 32 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 was examined by police, three days after the incident, which throws any amount of ambiguity whether P.W.5 was present at the scene of offence or not, at the relevant point of time of the incident. It is relevant to mention here that if really P.W.5 witnessed the incident, there is no reason as to why he did not volunteer to come forward and reveal the same to the investigating officer at the earliest point of time. He kept quiet for a period of three days without informing to anyone.
36. P.W.17-Magistrate conducted test identification parade of the accused wherein P.Ws.3 and 4 identified the accused and it throws further light that it is the accused who committed the offence.
37. Admittedly, the accused was present at the scene of offence on the fateful day. There is no dispute with regard to the same. Section 106 of the Indian Evidence Act, 1872 places onus on him. The accused has not produced any material to show as to how the incident had taken place. In the absence of any material produced by the accused, it has to be accepted that the accused and 33 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 others were the ones who caused the death of D1 and D2. Apart from the same, the accused and two others were caught on the spot by the public at the scene of offence. On a perusal of the entire evidence on record goes to show that it is the accused along with J1 and J2 who went to the house of P.W.1 with a pre-determined plan and without there being any invitation from P.W.1. Thereafter, he attacked both the deceased in the house in order to commit robbery in the house. The evidence of P.Ws.1, 3 and 4 is consistent without there being any discrepancy or inconsistency with regard to the incident proper. Therefore, in the facts and circumstances of the case, we are satisfied that there is sufficient evidence on record that accused and J1 and J2 are the ones who caused death of D1 and D.2. The said factum stands established.
37. The learned Sessions Judge, upon appreciation of the evidence on record in right perspective, found the accused guilty of the offences punishable under Sections 302, 397, 307 and 449 IPC and rightly convicted him of the said offences, and there are no grounds to interfere 34 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 with the convictions recorded by the learned Sessions Judge.
SENTENCE:
38. Insofar as sentence is concerned, the learned Sessions Judge imposed death penalty hanging by the neck till he is dead for the offence punishable under Section 302 IPC (under two counts). It is settled law that unless a case falls under rarest of rare cases, the capital punishment cannot be imposed. On this aspect it is pertinent to refer to a decision of the Constitution Bench of the Hon'ble Apex Court in Bachan Singh v. State of Punjab3, wherein it is held thus: (paragraphs 206 and
209).
"206. Dr Chitale has suggested these mitigating factors:
"Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.3
AIR 1980 SC 898 35 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency
-- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life 36 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
39. Learned senior counsel appearing for the accused relied upon relevant paragraphs in the decision in Manoj and others v. State of Madhya Pradesh (4 supra). (paragraphs 214, 215, 216, 217 and 218).
"214. Capital punishment is prescribed in numerous IPC offences, including murder, kidnapping for ransom, rape and injury causing death or leaving a woman in a vegetative state, rape or gang rape of a child below 12 years' old, dacoity with murder, among other offences. In Bachan Singh v. State of Punjab [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] (hereafter "Bachan Singh"), this Court had upheld the imposition of death penalty as an alternate punishment under Section 302IPC on the strength of the 35th Report of the Law Commission of India (1967), the judgment in Jagmohan Singh v. State of U.P. [Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169] (which had also noted that the 35th Report advocated for retention) and in several subsequent cases decided by this Court, in which the death penalty was recognised to be a deterrent. It laid emphasis on the then recently added Sections 253(2) and 354(3)CrPC which provide for bifurcated pre-sentence hearing and sentencing procedure on conviction of capital offences, to conclude that this form of punishment continued to have legislative backing and thereby, represented the will of the people.
215. It is undeniable that there have been shifts in how punishment in capital offences are dealt with. This is apparent when developments are looked at holistically, 37 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 or at a macrolevel : the amendments to the CrPC by Parliament, the 35th and 262nd Law Commission Reports which stand over 30 years apart, and the precedents of this Court, across the decades. Initially, the law imposed a requirement of written reasons for not imposing death penalty, which was removed in 1955. In 1973, through further amendment to the CrPC and insertion of Section 354(3) -- life imprisonment became the norm and imposition of death penalty required "special reasons"; and through Section 253(2) -- sentencing required separate consideration from the question of conviction. In both phases i.e. post-1955 and post-1973, capital punishment was upheld to be constitutional by five-Judge Benches of this Court in Jagmohan Singh [Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169] and Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , respectively.
216. The 262nd Law Commission Report on Death Penalty (2015) (hereafter "the 262nd Report"), is a result of this Court's references in primarily two cases. Firstly, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra, (2009) 6 SCC 498, para 112 :
(2009) 2 SCC (Cri) 1150] (hereafter "Santosh Bariyar") where, after taking note of the UN General Assembly Resolution 62/149 [ Adopted on 18-12-2007.] it was pointed out that credible research was required to shape an informed discussion and debate, on the contentious issue of death sentence. Secondly, the judgment in Shankar Kisanrao Khade v. State of Maharashtra [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, paras 148-149 : (2013) 3 SCC (Cri) 402] tasked the Law Commission to resolve the issue of whether death penalty is a deterrent punishment, is retributive justice, or serves an incapacitative goal; and to study the difference in approach adopted by the judiciary (rarest of rare) and the executive (what was termed as unknown) while granting commutation. In attempting to fulfil this mandate, the Commission discerned an urgent need for re-examination of its own earlier recommendations on the death penalty (in its 35th Report, 1967), given the drastic change in social, 38 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 economic, and cultural contexts of the country since the 35th Report, and arbitrariness which has remained a major concern in the adjudication of death penalty cases since Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] laid down the foundational principle of "rarest of rare".
217. Reflective of changed circumstances and evolving discourse, the Report marks a shift in the approach towards the death penalty in India, going so far as to recommend abolition in all offences, except those relating to terrorism. A large part of the Report focusses on courts' discretion and judicial reasoning when it comes to sentencing. It concludes that death penalty sentencing in India has been based on an arbitrary application of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] principle, and has become Judge-centric, based on the personal predilection of Judges -- a concern which was alluded to even by this Court in Swamy Shraddananda (2) v. State of Karnataka [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] and analysed extensively again in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150] , followed by Sangeet v. State of Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] , Mohd. Farooq Abdul Gafur v. State of Maharashtra [Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641 : (2011) 3 SCC (Cri) 867] , and more recently in Chhannu Lal Verma v. State of Chhattisgarh [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] (hereafter "Chhannu Lal Verma"). The death penalty framework and how to apply it for "principled sentencing"
218. This Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] while upholding the constitutionality of capital punishment, categorically ruled that the new CrPC of 1973 marked a shift as it bifurcated the criminal trial to include a pre- sentence hearing [under Section 235(2)], and further 39 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 mandated the sentencing court to outline the "special reasons" [under Section 354(3)] or absence of them, by considering circumstances both of the crime and the criminal. The Court also noted that while broad guidelines or indicators may be given, they cannot be put into water-tight compartments that curb discretion of any Judge to do justice in a given individual case :
(SCC pp. 739 & 748, paras 163 & 201) "163. ... Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.
***
201. ... As we read Sections 354(3) and 235(2) and other related provisions of the 1973 Code, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments.
In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of 40 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."
(emphasis in original)"
40. Relying upon the aforesaid decisions, the learned senior counsel appearing for the accused submitted that the Court below has not even considered the possibility of reformation of the accused. He further submitted that the case on hand does not fall under rarest of rare cases to impose the capital punishment, and the mitigating circumstances submitted by the authorities would suffice that capital punishment is not warranted in the case on hand.
41. On the other hand, the learned Public Prosecutor appearing for the State submitted that cruelty is quite evident from the nature of the crimes that have been registered as against the accused. He further submits that those circumstances are enough to warrant nothing less than capital punishment, which is rightly imposed by the learned Sessions Judge. According to him, it is in the cases like the present one, where the 41 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 'rarest of rare' doctrine needs to be invoked as a deterrent, for the reason that the accused was involved in three crimes wherein in two crimes, he was accused of committed murder with an intention to commit theft in the houses.
42. Before hearing the Criminal Appeal, this Court directed the District Collector, Nellore; (2) the Deputy Superintendent of Police, Nellore and (3) the Superintendent of Central Prison, District Prison, Nellore to submit a report not only with regard to the soundness of mind of the accused but also with regard to other parameters which are laid down in the decision in Manoj and others v. State of Madhya Pradesh4. Accordingly, reports were submitted by the authorities concerned.
43. A perusal of the reports submitted by the authorities would go to show father of the accused viz.
Shaik Yesdani Basha, aged 63 years, is running a own tailoring shop in Nellore and his mother Smt.Shaik Rajiya, aged 52 years, is a house wife. He has wife and a 4 (2023) 2 SCC 353 42 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 daughter, aged 12 years. His elder sister Smt. Shaik Gulzar is married and blessed with two children.
According to the report, parents and family members of the accused are not involved in any violence. As regards socio-economic back ground, there is one ancestral residential building and one tailoring shop, which are in the name of his father.
44. As regards education, the accused completed Polytechnic Diploma course and a course in Architecture (interior designing). He was pursuing 5 year B.L. course and by the date of the awarding death penalty, he completed 4th year of the course. He is a building elevation designer, and he was maintaining an office under the name and style '3D Architecture' at Narthaki Centre, Nellore town. He was doing the work of building designing and building elevation, etc. and he was addicted to vices and sustained loss in the business.
45. According to the report submitted by the District Probation Officer, Nellore, the accused completed B.Tech. and has no mental/psychological ailments, and 43 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 neighbours stated that the accused was a friendly and affectionate person. His parents are suffering from chronic illness and presently, wife of the accused is living with her parents and she is getting little financial support from her parents-in-law.
46. The accused was also involved in three other crimes where he is accused of causing death of old women in order to commit theft in the house. In respect of the said three cases, trials went on and the accused was acquitted in all the three cases. Merely because cases were registered as against the accused, it cannot be a ground to award death punishment in the present case on hand. On this aspect, it is pertinent to refer relevant paragraphs in the decision in Manoj and others v. State of Madhya Pradesh (4 supra). (paragraphs 234, 235, 236 and
237) "Theories of punishment
234. The 262nd Report speaks extensively to the penological justification of the death penalty. It finds that there is inconclusive evidence that this form of punishment has more of a deterrent effect, in comparison to life imprisonment. Dismissing the retributive theory of punishment on the ground that it 44 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 suffers from lack of guidance on quantifying the punishment that would be appropriate to impose, it categorically states that:
"7.1.2. Capital punishment fails to achieve any constitutionally valid penological goals. 7.1.3. focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime."
235. While the 262nd Report recommends abolition of the death penalty on this ground, in addition to sentencing having become Judge-centric or arbitrary, it has not prompted parliamentary intervention. Whether the death penalty deserves a relook [as recommended by Kurian Joseph, J. (dissenting) in Chhannu Lal Verma [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the 262nd Law Commission Report, evolving jurisprudence, public discourse and international standards of human rights, is outside the purview of this Court's jurisdiction given the Constitution Bench decision in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and a question best left for the legislature to critically consider. In this backdrop, what this Court can do, is try and bolster the existing sentencing framework. This is possible only by giving true meaning to the existing guidelines (without falling into the trap of "categorising" crimes that automatically warrant death penalty). To do so, this Court finds it necessary to lay out certain practical guidelines (elaborated below) that can facilitate consideration of mitigating circumstances as recognised in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and consequently ensure uniform application of this framework.
236. The 262nd Report recognised the paradigm shift, in policy and discourse, towards a reformative and rehabilitative response to crime, and the development of jurisprudence such that adjudging a case to be "rarest of rare" was not sufficient, and special emphasis had to 45 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 be placed in considering whether the offender is amenable to reform. Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the State and society's failing, which is what entitles the accused to a chance of reformation. Thus, making life imprisonment the norm, and death penalty the exception. In Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526] while deciding whether the facts in that case were appropriate for death penalty, traced this shift in approach : (SCC pp. 83-84, para 14) "14. ... Section 302IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3). There is another provision in the Code which also uses the significant expression "special reason". It is Section
361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute book at the same time and they are part of the emerging picture of 46 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed."
(emphasis supplied)"
In view of the principle laid down in the aforesaid judgment, with an advent of goal of reformation in the recent past, the society must stride towards reformation and rehabilitation.
47. In Sundar @ Sundarrajan v. State by Inspector of Police,5 the Hon'ble Apex Court held thus: (paragraphs 63, 64 & 76).
"63. In Santa Singh v State of Punjab (1976) 4 SCC 190, a two judge Bench of this Court highlighted the requirement of having a separate sentencing hearing in view of Section 235(2) of the CrPC and noted that the stage of sentencing was as important a stage in the process of administering criminal justice as the adjudication of guilt.
64. The judgment of the majority in the Constitution Bench decision in Bachan Singh v State of Punjab (1980) 2 SCC 684 reiterated the importance of a sentencing hearing. The Court noted that:5
2023 LiveLaw (SC) 217 47 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 "151. Section 354(3) of the CrPC, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now according to this changed legislative policy which is patent on the face of Section 354(3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception.
[...]
152. In the context, we may also notice Section 235(2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan's case was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the preconviction stage and another at the pre-
sentence stage.
[...]
163. [...] Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3) a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration "principally" or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal."
(emphasis supplied).
48
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 ...
76. In Rajendra Pralhadrao Wasnik v State of Maharashtra (2019) 12 SCC 460, a three judge bench of this Court took note of the line of cases of this Court which underline the importance of considering the probability of reform and rehabilitation of the convicted accused before sentencing him to death. The court observed:
"43. At this stage, we must hark back to Bachan Singh and differentiate between possibility, probability and impossibility of reform and rehabilitation. Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility. [...]
45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the "special reasons" requirement of Section 354(3) CrPC and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.
46. If an inquiry of this nature is to be conducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of conviction and the date of awarding sentence 49 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 would be quite prolonged to enable the parties to gather and lead evidence which could assist the trial court in taking an informed decision on the sentence. But, there is no hurry in this regard, since in any case the convict will be in custody for a fairly long time serving out at least a life sentence.
47. Consideration of the reformation, rehabilitation and reintegration of the convict into society cannot be overemphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet "In the sentencing process, both the crime and the criminal are equally important."
Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible. 50
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 (emphasis supplied)"
The Hon'ble Apex Court observed that the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.
48. Criminal Justice System is more punitive than intended. The system is touted to be reformable and rehabilitative. The objectives of the Indian Criminal Justice System include penalizing, reforming and rehabilitating the offender. Reformation is its final goal, as the system asserts to be more rehabilitative than retributive. Everyone of us are born innocent. Some persons, because of their genetic composition, living experiences and other circumstances, could result in commission of the crimes. Social inequities and 51 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 vulnerabilities of an accused would lead to the commission of crime.
49. The appellant is an Architectural Engineer.
According to the prosecution case, the appellant is known to P.W.1. Having satisfied with the plan submitted by the accused, P.W.1 engaged him to prepare plans for his college. This Court is of the view that if the accused can be rehabilitated by providing counseling services to cater to the psychological needs, social, economic and personal challenges. This Court is of the view that there is a chance for the appellant to join the main stream of the society.
When such is the view taken by the Hon'ble Apex Court in the recent past and having regard to mitigating circumstances stated supra, this Court is of the view that death sentence imposed on the accused is harsh in the facts and circumstances of the present case.
50. In view of the aforesaid reasons, the death sentence imposed on the accused is modified and the accused is sentenced to undergo rigorous imprisonment for 20 years without any reprieve or remission, and also to 52 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months, under each count, for the offence punishable under Section 302 IPC (under two counts).
Further, the sentence of imprisonment for life concurrently, imposed by the learned Sessions Judge, for the offences punishable under Sections 449 and 307 IPC, is modified, and the accused is sentenced -to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months, for the offence punishable under Section 307 IPC and - to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months, for the offence punishable under Section 449 IPC. The sentence imposed by the learned Sessions Judge for the offence punishable under Section 397 IPC is confirmed.
All the substantive sentences of imprisonment shall run concurrently.53
SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020
51. With the above modification in sentences, the Criminal Appeal is dismissed. Referred Trial is answered accordingly.
------------------------------------------------ JUSTICE K.SREENIVASA REDDY
------------------------------------------------ JUSTICE T.MALLIKARJUNA RAO 27.09.2024 DRK 54 SRKJ & TMRJ CRL.A.NO.353 of 2020 & RT 1 of 2020 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY AND THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO COMMON JUDGMENT IN CRIMINAL APPEAL No.353 OF 2020 & R.T.NO.1 OF 2020 (per the Hon'ble Sri Justice K.Sreenivasa Reddy) 27.09.2024 DRK